Price Padgett v. State

01-07-00964-CR | Tex. App. | Dec 18, 2008

Opinion issued December 18, 2008









     




In The

Court of Appeals

For The

First District of Texas





NO. 01-07-00964-CR





PRICE PADGETT, Appellant


v.


THE STATE OF TEXAS, Appellee





On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 05CR0582





MEMORANDUM OPINION


          A jury found appellant, Price Padgett, guilty of possession of less than one gram of methylenedioxy methamphetamine. The trial court sentenced appellant to two years incarceration, suspended for one year of community supervision. In one issue, appellant asserts that the evidence was legally insufficient to support his conviction.

          We affirm.

                                                        Background

          In the early morning hours of January 1, 2005, appellant, who was an officer with the Galveston police department, rolled his truck over in a one-vehicle accident on the west end of Galveston Island. Officer Lee Gonzales of the Galveston police department, who had been working an off-duty security job, came upon the accident scene. Appellant told Officer Gonzales that his career was in jeopardy and asked the officer to “let him disappear.” Officer Gonzales called for back-up. Additional officers, firemen, paramedics, and other emergency personnel were dispatched to the scene, including emergency medical technician (“EMT”) Richard Chenosky. EMT Chenosky heard appellant repeatedly say, “I want Kylen.” Chenosky knew that appellant was referring to Galveston police officer Jeremy Kylen

          Officer Kylen soon arrived at the scene. Galveston fire department officer Andrew Rourk heard appellant say to Officer Kylen, “Keep my wallet for me. There’s nothing illegal in it or anything.” Officer Kylen walked away and did not take the wallet. Officer Rourk had seen appellant earlier retrieve the wallet from the overturned truck.

          Emergency personnel at the scene eventually convinced appellant to be taken to the hospital for treatment. Before he climbed into the ambulance, appellant shoved a small black bag into Officer’s Kylen’s stomach causing Officer Kylen to grab the it. Appellant then quickly climbed into the ambulance. Officer Kylen looked in the bag and saw a small Ziploc baggie containing white residue. Officer Kylen turned the black bag containing the Ziploc baggie over to his supervisor.

          The Houston crime lab tested the residue found in the Ziploc bag. The lab determined that the residue was 34 methylenedioxy methamphetamine, a controlled substance commonly known as MDMA or Ecstasy.

Legal Sufficiency

          In one issue, appellant challenges the legal sufficiency of the evidence to support his conviction for possession of less than one gram of MDMA.

A.      Standard of Review

          A legal-sufficiency challenge requires us to view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. See Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Sanchez v. State, 243 S.W.3d 57, 71–72 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). To determine whether the evidence is legally sufficient, we must examine the totality of the circumstances. Vodochodsky, 158 S.W.3d at 509. Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

B.      Analysis

          Here, the State was required to show that appellant knew that the baggie contained MDMA. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). (recognizing that, to prove unlawful possession of controlled substance, State must prove (1) that accused exercised care, control, or management over contraband and (2) that accused knew substance was contraband). Appellant contends that the State failed to prove this element. Appellant points out that “the substance in the baggie . . . could not be identified by looking at it. The amount of the MDMA was so small that it could only be identified by spectrographic inspection.” Appellant further contends that he “could have unthinkingly picked up the baggie as a piece of trash and never known what it had once contained, and of what it might still contain a trace.”

          Absent an admission by the accused, knowledge “must always be inferred to some extent.” McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). The undisputed evidence showed that appellant had actual physical possession of the MDMA. See Kwant v. State, 472 S.W.2d 781, 783 (Tex. Crim. App. 1971) (taking into consideration evidence that defendant had paper bag containing marihuana in his hands in concluding that appellant knew that bag contained marihuana).

          In addition, the record contains evidence demonstrating that appellant knowingly possessed MDMA beyond his mere possession. Appellant is correct that the baggie contained only a trace amount of MDMA and that it was not possible to ascertain that the residue contained MDMA simply by looking at it. Nonetheless, the evidence showed that the residue in the baggie was visible to the naked eye. See King, 895 S.W.2d at 704 (considering visibility of residue when conducting legal sufficiency analysis regarding whether defendant knew pipe contained cocaine); Caballero v. State, 881 S.W.2d 745, 748 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (same); Mayes v. State, 831 S.W.2d 5, 7 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (same). Officer Kylen testified that, when he saw the residue in the baggie, he immediately assumed that the residue was a controlled substance, specifically cocaine.

          The jury also could have rationally relied on appellant’s conduct and comments at the scene as evidence that he knew the bag contained a controlled substance. See Daniels v. State, 853 S.W.2d 749, 751 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (citing, in part, defendant’s behavior as evidence that he knew pipe contained cocaine). As discussed, the first officer on the scene testified that appellant asked him to “let him disappear.” Testimony was also given that appellant repeatedly asked for Officer Kylen. Although appellant testified that he and Officer Kylen did not get along well, Officer Kylen testified that he and appellant were friends. When Officer Kylen arrived, appellant asked him to take his wallet, assuring Officer Kylen that it contained nothing illegal. The evidence further showed that, after Officer Kylen declined to take the item, appellant handed Officer Kylen the bag containing the MDMA in a manner that left the officer essentially no choice but to take it.

          Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant knowingly possessed MDMA. We hold the evidence is legally sufficient to support the judgment of conviction.

          We overrule appellant’s sole issue.

 

Conclusion

          We affirm the judgment of the trial court.




 


                                                             Laura Carter Higley

                                                             Justice


Panel consists of Chief Justice Radack and Justices Nuchia and Higley.


Do not publish. See Tex. R. App. P. 47.2(b).